Lambeth Council (201909098)

REPORT

COMPLAINT 201909098

Lambeth Council

15 September 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The resident complained about the landlord’s response to his:
   1. repair requests for water leaks, damp, lack of ventilation and uneven flooring.
   2. housing transfer application.

Jurisdiction

2. The Ombudsman is aware that the resident wishes to move from the property. It would appear this is because of his concerns with the condition of the property and health concerns. He has raised with the landlord his dispute about its decision with regard to rent arrears preventing him from applying for a transfer. The landlord has responded to this at various points in the complaints process.
3. However, a complaint regarding an application to a local authority for transfer (including eligibility criteria for a transfer under an allocations scheme) is a matter that would potentially fall to the Local Government and Social Care Ombudsman, not the Housing Ombudsman, to consider.
4. Paragraph 39(m) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall within the jurisdiction of another Ombudsman, regulator or complaint-handling body.  Consequently, this aspect of the complaint has not been considered as part of the Ombudsman’s investigation.

Background and summary of events

5. Background: The resident lives in a one bedroom first floor flat which is managed by a resident management organisation (RMO) on behalf of the landlord which owns the property.
6. Despite the Ombudsman’s enquiries of the landlord there are aspects of this case which remain unclear. The following summary therefore comprises those matters for which evidence has been provided or accounts given by both the landlord and the resident and makes clear where necessary the nature of the evidence being relied upon.
7. In June 2017 the resident commissioned a survey of the property which identified a guttering issue causing leaks through windows at the rear of the property; uneven floor screeding; and condensation from incorrectly located/sized radiators and a lack of trickle vents. Although the background repairs history in this case is not clear, it appears from the landlord’s repairs records that in January/February 2018 a leak coming from the property above was addressed and damage to the resident’s property repaired. The Ombudsman has not seen evidence of the resident having raised a specific repair request at that time with respect to the uneven flooring or of any persistent damp from the leak.
8. Summary of events: The landlord’s records indicate a repair was raised on 4 July 2019 for ‘render repairs: make good defective render…repair any loose or cracking external render…….’ On 5 July 2019 the resident complained to the RMO about outstanding repairs to the external rendering. [The Ombudsman has not seen this complaint.]  A further render repair was raised on 16 September 2019. The landlord’s records indicate an external render repair was completed by 8 November 2019.
9. Meanwhile, in July 2019 the resident commissioned a survey of the indoor air quality at the property. This report (dated 22 July 2019) concluded the air quality was poor as a result of everyday indoor sources, relative humidity and factors such as mould spores, bacteria, dust and outside traffic and the lack of ventilation through the property. It recommended the installation of a deducted air purification unit for short/medium term improvement, and a ducted ventilation system as a longer term measure.
10. It is clear the resident shared with the landlord the above report.
11. On 21 October 2019 the RMO’s repairs manager responded to the complaint (paragraph 8), noting external repairs appeared to have resolved previous leaks as there had been no further reports. It said it would repair survey holes made in the walls by the resident’s surveyor although these were not its responsibility. But it would not undertake the major structural works sought by the resident to change the ventilation of the property. It advised him of his right to a review of its complaint response. [Under the landlord’s complaints process a local initial response is provided by the RMO within 20 working days and, if dissatisfied, the resident can request a review by the landlord, which it aims to provide within 25 working days.] The Ombudsman has seen no evidence the resident escalated his complaint at that stage.
12. It appears from the landlord’s repairs records that further render repairs were completed on 23 January 2020.
13. Stage 1 complaint: At the beginning of June 2020 the resident contacted the Ombudsman about outstanding internal and external repairs, including damage caused by a leak, and his concerns about air quality in the property. The Ombudsman asked the landlord to either log or escalate his complaint for a response. The landlord’s repairs records indicate on 19 June 2020 a repair was raised to ‘investigate leak in to lounge after rain’. The resident has said contractors visited on 20 June 2020 and said they would arrange for access to the property above to investigate the problem. He says the RMO’s repairs manager then contacted him on 23 June 2020 and said he would like to attend with his surveyor. The resident says although he stayed in all day nobody came. The records indicate the repair was completed on 29 July 2020. Meanwhile its voids surveyor reported to the repairs manager that while he had been at the property previously the resident had asked him to consider the air circulation. He said despite the resident saying there was no air circulation, he had noted the bedroom and sitting room curtains moving because of the wind and fresh air coming in one side of the property and exiting out the other. [It appears the landlord originally considered this to have been an inspection, but it was not.]
14. Stage 1 complaint response: On 1 July 2020 the RMO’s repairs manager responded to the above complaint, referencing his recent visit to the property. [The Ombudsman has been provided with no record of this visit.] In summary, he:
    1. confirmed the resident had recently reported further water ingress after heavy rain but had refused to allow contractors to further investigate. [The resident denies refusing access and the landlord has said the information came from its contractors but it has no evidence to support it.] 
    2. said the landlord would check for any blocked drains in the property above. [It inspected the following day and arranged for scaffolding to carry out any work needed to prevent further water penetration during heavy rain.]
    3. repeated its offer to repairs the holes in the walls, despite it being a breach of the resident’s tenancy for him to have done so.
    4. explained with reference to the resident’s 2017 surveyor’s report, the water penetration and condensation noted therein had been resolved and had not been detected during his last visit.
    5. found, with regard to any building movement/uneven floors, these had been neither witnessed nor reported by other residents but had been noted.
    6. explained that with respect to the structural works the resident was seeking to change the ventilation of the property, it would not be undertaking the major structural works as both he and the landlord’s voids surveyor had found the property to be suitably ventilated.
    7. confirmed there were no planned replacement works.
    8. outlined the resident’s right to escalate his complaint for review.
15. The landlord has told the Ombudsman that in relation to the resident’s two reports, it found that:
    1. dampness from eaves guttering was cleared as planned works pre autumn 2018.
    2. report of leak from above made on 12/01/2018 and repairs to seal around window completed on 19/01/2018.
    3. external render repairs carried out following defect reported on 04/07/2019 and repairs completed on 05/08/2019.
    4. leak in lounge reported on 19/06/2020 and window seal replaced on 25/06/2020.
    5. all issues referring to ventilation are not repair issues but intrinsic issues associated with building design although no other similar property in the building had ever raised ventilation issues.
    6. no other history of repairs relating to damp/leak issues.
    7. resident’s refusal to have the damage he caused to the walls repaired was not documented as the works offered were discretionary as they would normally be recharged as tenant damage. [The meaning here is unclear.]
    8. issues of uneven floors – there is no record of when all floor coverings were removed. Floors were and still are bare concrete as built in late 1990s so not a disrepair issue.
16. Stage 2 review: The Ombudsman has seen no evidence that the resident escalated his complaint directly with the landlord but, following the Ombudsman’s intervention, on 29 September 2020 the landlord provided its Stage 2 final response. In summary, it explained that:
    1. with regard to the reported water ingress, despite the resident refusing access to contractors to investigate, it had erected scaffolding, carried out external works on 7 July 2020 and had received no reports of rainwater penetration since.
    2. despite its offer to make good the holes he had made in his walls, he had yet to engage with the RMO to enable this to happen and it asked that he do so.[The resident has said he subsequently repaired the holes himself.]
    3. it had no record of any outstanding repairs.
    4. with respect to ventilation, its repairs manager and surveyor were satisfied the property had adequate ventilation following their inspection of the property.
17. Since referring his complaint to the Ombudsman the landlord has further explained that improving ventilation would require substantial physical alterations to the structure of the block and that when regeneration was carried out over 20 years ago the layout design was fully compliant with correct sized opening fitted windows etc. It has also told the Ombudsman that the resident is the only tenant ever to complain of the issue. With respect to the current drainage of the property, the landlord has confirmed that the design of building restricts any modification of this because the drainage from the kitchen and bathroom empty into a building wide communal waste stack within the building structure. On this point it reports that the resident’s is the only property to report any drainage issues other than the usual fat and grease blockages that could normally be expected. However, in order to resolve the other aspects of the resident’s complaint, the landlord has offered, provided he permits access to:
    1. Review and reconsider improving ventilation where possible in order to resolve the matter – although it cannot make any guarantees to undertake work until it is able to access the property to inspect and review findings.
    2. Laminate the flooring to the bedroom, lounge and hallway (but not the kitchen and bathroom as these already have safety non-slip flooring).
    3. Instruct drainage services to inspect and advise on any remedial works.
18. The Ombudsman notes from the landlord’s repairs records that between September and November it arranged ‘tower access for repairs’.

Assessment and findings

19. The details surrounding the complaint and the landlord’s actions in this case have not been clear from the information provided. The Ombudsman expects a landlord to be able to provide a clear account of its actions in a case, together with the evidence to support this. In this instance the Ombudsman has not been provided with all the relevant evidence necessary to establish clearly the facts. It has been necessary for the Ombudsman to base its determination in so far as is possible on what evidence has been provided, together with the accounts of both parties in assessing what has transpired in this case. 
20. Leaks: The available evidence indicates there were some historic leaks at the property which were attended to and addressed by the landlord in 2018/2019 (paragraphs 7 and 11 refer). When the resident reported a further leak on 19 June 2020 (paragraph 13) the records indicate that although the landlord took some action on 25 June 2020 (paragraph 15) the leak was eventually resolved on 7 July 2020 (paragraph 16). There is a dispute between the parties as to whether in the course of investigating the leak the resident refused access. While the landlord reasonably sought to rely on the information from its contractors for the purposes of its complaint response, it has not been able to provide evidence of the failed access. As the Ombudsman sees it, whether or not there was an issue with access had little bearing on the eventual outcome. The landlord ultimately resolved the repair through external work.  As its repairs policy undertakes to resolve non-urgent repairs (such as the leak) within 7 working days, the time taken did not fall significantly outside this timescale.
21. Damp: The issue of damp would appear to have been related to the previous leaks, but also the resident’s concern with regard to ventilation of the property. The landlord’s repairs manager and surveyor found the damp caused by the leaks had been resolved (paragraph 15) and the Ombudsman has seen no evidence that the resident then raised specific repair requests with respect to persistent damp in parts of the property. In 2019 repairs were raised with respect to external guttering that appear to have been completed in November 2019. There is no evidence to indicate if this issue was related to the damp issue and on the basis of the evidence provided by both the resident and the landlord there is insufficient evidence on which to base a determination of whether or not there was any service failure in relation to the rendering that might have contributed to a damp issue.
22. There is evidence, however, that once the resident had raised the issue of damp as part of his complaint, while the landlord confirmed it had found no evidence of any damp following resolution of the leaks it did undertake to inspect the drainage at the property (paragraph 17). Although not clear, this would ostensibly be related to the resident’s concern about damp and as such constitutes a reasonable response to the resident’s complaint about it.  
23. Ventilation: The issue of the air quality in the property is clearly of considerable concern to the resident and he has obtained a report recommending measures by which ventilation might be improved. The available evidence does not indicate the air quality in the property is the result of an outstanding repairs issue which has failed to be addressed by the landlord. That being the case, it does appear – as landlord’s surveyor found it to be – primarily related to the construction of the property and the environment (paragraph 15).
24. The Ombudsman has reviewed the landlord’s response to the resident’s concern about air quality and ventilation. Once the resident had commissioned a report it was fair and reasonable that the landlord consider it; which it did. The landlord has confirmed it did not conduct a survey of the property, but its repairs manager and surveyor found the property to be sufficiently ventilated and its finding of that together with the fact that it had not had reports from other residents on the matter led it to conclude there to be no necessity for it to undertake the major structural works identified in the report (paragraph 14).
25. Although the resident disagrees with this finding the landlord is entitled to rely on the professional opinion of its surveyor, as someone suitably qualified to determine the issue. The Ombudsman notes, however, that major structural works aside, the report also made recommendations for less intrusive modifications to improve ventilation. In the Ombudsman’s opinion, as the works recommended in the resident’s report constituted improvements rather than repairs, there was no obligation on the landlord once it had satisfied itself that no repairs were required. But in light of the clear and ongoing concerns the resident had with regard to the issue of air quality and ventilation, the Ombudsman considers the landlord’s undertaking to review and improve the ventilation of the property where possible (paragraph 17) to be a fair and proportionate response at that stage.
26. Uneven flooring: With regard to the uneven flooring, this was reported by the resident’s surveyor in its 2017 survey. Although this report was shared with the landlord, the Ombudsman has seen no repair request from the resident at that time. If he had made a request but remained unhappy it would have been open to him to pursue it as a complaint at that time. There is no evidence of him having done so.
27. The resident did, however, raise it as part of his later complaint and when he did the evidence indicates the issue was considered by the landlord. It appears part of the flooring in the resident’s flat was concrete, had no covering and was uneven, although the landlord has said it is smooth enough to take a covering. For its part the landlord has said this would not be a repairs issue as the concrete would have been as it was when the building was constructed and it has no idea when the floor covering was removed. The landlord’s repair obligation is triggered when the resident reports a need for a repair for which the landlord is responsible. The Ombudsman has seen no evidence of a specific repair request from the resident with respect to the flooring prior to his complaint in 2019 to which the landlord failed to respond. But in considering his complaint the landlord has, appropriately in the Ombudsman’s view, undertaken to install laminate flooring on the exposed areas. The Ombudsman considers that to be a reasonable and proportionate response from the landlord to the issue.
28. The resident has told the Ombudsman that the condition of the property has affected his health and his ability to work, although the precise details are unclear. The Ombudsman can look at whether a landlord has met its repair obligations, but it cannot determine whether a resident’s health has been specifically impacted by living in a property and whether any action or omission by a landlord contributed to that. Such matters would fall more appropriately to be determined by those professionally qualified to assess such matters, which in this case would be the landlord’s insurers. The landlord has told the Ombudsman that the resident has not raised the issue previously and it does not have any supporting information from him with respect to his claim (such as a medical assessment to support any re-housing application). It has explained, however, that it is open to the resident to make a claim for personal injury (and any damage to property) to its insurers, and that information for the resident on making a liability claim is available on its website.

Determination (decision)

29. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s repair requests to address water leaks, damp, lack of ventilation and uneven flooring.
30. In accordance with paragraph 39(m) of the Housing Ombudsman Scheme the resident’s complaint about his housing transfer application is not within the Ombudsman’s jurisdiction.

Reasons

31. The evidence indicates the landlord responded to the resident’s report of leaks and damp in accordance with its repair obligations. There is no evidence that the landlord failed to comply with its repair obligations with respect to the resident’s concerns about ventilation of the property and uneven flooring and in the Ombudsman’s opinion its subsequent response to these issues has been reasonable and proportionate.
32. The resident’s complaint regarding his application for a housing transfer and his disagreement with the landlord’s decision is not a matter that falls within the Ombudsman’s jurisdiction. It is a matter which potentially falls within the jurisdiction of the Local Government and Social Care Ombudsman.

Recommendations

33. The Ombudsman recommends that if not already done so, the landlord undertake, as offered:
    1. To review and reconsider improving ventilation at the property (once access is permitted).
    2. To review the flooring and, with the resident’s consent, install the laminate flooring.
34. The Ombudsman recommends that the landlord and the RMO review the RMO’s keeping of repairs information to ensure this is readily available, not only for complaint investigations but also for dealing with other enquiries and day to day monitoring.